The Civil Services holds the most prominent place in the
progress of the country. A Country's efficiency, democratic value and
development widely is adjudged and determined by the Administrative Team and
Civil Machinery of that Nation.
We always in the Constitution, with various Statutes and Acts learn about the
Independence of Judiciary and Doctrine of Separation of Power, which ultimately
aims at reducing or eliminating the political influence over the Executive Organ
in order to ensure peace, efficiency and justice as a means of end in Law and
Administration of a Country, as it is perfectly seen in USA. Independence of
Judiciary always talks about the Principle of Judicial Review, and Concept of
Checks and Balances over the constitutionality of the legislative enactments and
However, as looking the field of law with bare eyes we must accept one thing
that Today the Executive Machinery is Totally adulterated with the evils of
Politics and ultimately is hampering the growth and development of the Nation at
large. We can very often learn from the Newspapers and Televisions that even the
transfers and postings of administrative officers has a very wide influence of
the political agenda of the ruling party on it, ignoring the capabilities and
eligibilities of a Person, and linking it with the further repercussions on the
post on which he is sent on.
In-efficient and In-eligible Persons are appointed on major and important posts,
and the good cultured officials are kept in looplines of the administrative
tunnels by the so-called Political Heads of the Nation or the State for deriving
their own vested interests, in the whole only the efficient and innocent Persons
suffers the most, for which our Constitution provides the legal immunity and
protection for safeguarding one's position from such red-tapism and dirty
politics in the Country.
The Constitutional Provisions safeguarding the Administrative Officials and
Civil Servants from such harshness and un-reasonableness of the Political Heads
can be learned and understood under Article 309,310,311 f the Indian
Constitution for the Appointment, Dis-missal and Removal of a Civil Servant from
it's post. It can widely be termed as a Legal Immunity being provided to the
Civil Servant for safeguarding his position against the mis-use of law and
procedure against him.
Recruitment And Regulations In The Conditions Of Service Of Civil Servants:
Under Article 309 of the Indian Constitution, it empowers the Parliament of
India and respective State Legislatures to regulate and provide rules and laws
for the appointment and regulation of the Civil Servants in the Country for both
the persons appointed under the Union and State Governments, respectively.
provision also expressly states that until the provisions or law regarding the
aforesaid is not made by the Parliament or any or all State Legislature than
under such circumstances the President or the Governor of the State holds the
Authority to make laws which may be temporary for regulating and operating such
appointments saving the country from mal-administrative and failure.
It can widely be seen by the language and vocabulary used in the Article 309
Subject to the Provisions of the Constitution
makes one thing crystal clear
that the rules and acts made for the appointments and postings of the Civil
Servants and the Rule-making Powers of the Executive Organ or the Administrative
Officials concerned must not abrogate any provisions of the Indian Constitution,
hugely including the Fundamental Rights of any individual.
The one very basic question which usually raises in the minds of the readers is
regarding the Constitutional Validity of the Right to Strike of the Civil
Servants. It is quite clear in minds of the readers that despite some Government
Officials or any particular groups of professionals being indulged in the
Government Service are having their registered trade unions but, even under any
law or even our Constitution of India, Right to Strike is not a Fundamental or
The question came before the Hon'ble Supreme Court of India in the most popular
case of T.R. Rangarajan v. Govt. Of India
 the Two Judges Bench of Hon'ble
Supreme Court of India held that a Government Servant under any circumstances
has No Right to Strike, neither morally or Legally, however if they felt
aggrieved by any action of the Government or Legislative Organ than they must
approached the appropriate Tribunal or Court for seeking remedy regarding the
In year 2002, the State Government of Tamil Nadu took a surprising action
by suspending 2 Lacks Government Employees under the statutory provisions
of Tamil Nadu Essential Services Maintenance Act, 2002 and Tamil Nadu Ordinance,
2003 who had gone on strike for their demands.
The Petitioners challenged the
Constitutional Validity of the aforesaid acts, on which the Court contended that
the Government Servants have no Right to Strike, as strike is usually as a
weapon which mostly have resulted in Mal-administration, havoc and chaos in the
State or the Country, instead they must have opted for a legal remedy for
seeking redressal regarding their issue.
The Court also said that, such massive
strike of more than 2 Lacks Government Employees puts the Government on a
grinding and unknowing halt, and ultimately the society suffers the most by
virtue of such events. The Court also accepted the Reply from the Sate
Government regarding this matter under which they contended that over the 90% of
the Government Revenue being received from the direct-taxes was used for the
maintenance of 12 Lacks Government Employees of the State, which according to
the capacity and resources of the Government was their best and justifiable.
However, the Court clearly contended that the Registered Trade Unions which are
registered under the Statuary Laws have a unified and collective Right to
Bargain and Compromise on behalf of it's employees and members, but they doesn't
have any Right to Strike under any circumstances, and even no political party or
organisation has any right to paralyse the economy and workings of any State or
Place ultimately doing injustice and causing in-convenience to the citizens of
Therefore, till date Right to Strike is neither a Fundamental, Legal or
Constitutional Right in India.
Doctrine Of Pleasure
The Doctrine of Pleasure plays a very major role in the consistency and on the
administrative life of a civil servant. We must have learnt that England, the
Civil Servant which is duly appointed by the assent of the Crown can be removed
from his post or terminated without assigning any reason to him.
Even if the Contract of Employment doesn't bound the Crown in any manner. This
is known as Absolute Pleasure
, i.e. solely the destiny of the Civil Servant depends upon
the Pleasure of the Crown, however in actual practice the public policy is kept
in mind before ascertaining any action against any Civil Servant in England, and
if it seems vital and in furtherance of Justice than only the person is removed
from his post, and not otherwise.
In India Article 310 of the Indian Constitution describes widely the pleasure
exercised by the President of India, on appointment and dis-missal of the Civil
The article widely states that the Persons who are:
- Members of Defence Services of India
- Members of Union Public Service Commission of India
- Members of State Public Service Commission of India
- All India Services of India
Holds their offices during the Pleasure of the President of India, and in the
State concerned on the whims and pleasure of the Governor of the State. However,
it must actively be noted and minded that this pleasure constituted and
mentioned in the Constitution is not an Absolute Pleasure as was in England, but
is graced with certain restrictions on it's execution.
Like it was held in State of Bihar v. Abdul Majid
 that a Civil Servant could
always sue the State for his entitled salary, and which is even his legal and
fundamental right from which he can't be deprived off.
The Article 310 expressly says and uses the words Except
by the Constitution
states that the Civil Servant could be removed or action against
him could be ensured but it must be accordance with Constitution and Statutes
being enacted in this reference. Further Article 311 of the Constitution itself
places a restriction on the arbitrary removal of the State or Authorities
concerned and places a pre-condition of the necessary procedure to be
implemented before the same, which makes it quite clear that even the Civil
Servant are been given an immunity against the Arbitrary and Un-reasonable
Actions of the State Authorities or any other Authorities concerned as the case
However, it must be noted that under the Fundamental Rules 56 (b) and Rule 48
of Central Civil Services Pension Rules 1972 the Government can grant or give
compulsory retirement to the Civil Servant not as a punishment but as a
Constitutionally enabling provisions subject to the integrity and public policy.
Even under the Fundamental Rules 56 (c) the Civil Servant is having a
indispensable right to voluntary retire from his post, giving a Three Months
Notice to the Government.
The Article 310 of the Indian Constitution even
provides an enabling provision and power in the hands of the Government to
abolish a post in the Centre or the State as the case may be however such
abolition or action is always subject and is in purview of Judicial Review.
Exceptions of Doctrine of Pleasure
As referred above that in India, the
Pleasure of the President, Governor or Government of India or the State as the
case may be does not have right to exercise an absolute pleasure, and the
Pleasure exercised by them have certain restriction being imposed on them by our
Constitution of India, they are:
- The foremost restriction on removal or dis-missal of any civil servant is
laid down under Article 311 which states that all the field covered and listed
under it are excluded from the exercise of Doctrine of Pleasure. Even it
provides an concrete immunity to the civil servants, as they can sue the State
or the Union against an arbitrary removal or dismissal and for the entitled
salary of the Civil Servant.
It expressly places the restrictions on arbitrary
actions of the Government and laid downs the proper procedure for conducting
inquiries and investigation before removing any civil servant from his post, or
dismissing him or reducing his rank.
- The Posts in accordance with Article 311 which are excluded from the
exercise of Doctrine of Pleasure by the President of India or Governors of
the States are as follows:
- Judges of Supreme Court of India- Article 124
- Judges of High Courts of the States- Article 218
- Auditor- General of India- Article 148 (2)
- The Chief Election Commissioner of India- Article 324
- Chairman or Members of Public Service Commission- Article 317
Constitutional Remedies And Protection Ensured To Civil Servants In India:
Before learning or knowing about the Constitutional Safeguards being provided to
the Civil Servants in India, it is deliberately important to understand the
meaning of Civil Post i.e.
Who are Actually Civil Servants?
As till now it must
be clear in the minds of the readers that Article 311 is applied only on the
Civil Servants in India, and is not available as a remedy to any other person or
employee than a civil servant, even if he is associated with the Government of
Union, State or any Corporation.
Neither in Article 310, 311 or under any specific act the meaning of Civil
, is defined or described, it must widely be understood with the inferences
and interpretations of the Judicial Pronouncements in India. Firstly, it has
been laid down regarding the Defence Employees that they are not covered under
the purview and ambit of Civil Post.
In the famous case of V.K. Nambudri v.
Union of India
 it has been laid down by Hon'ble High Court of Kerala that
the defences and safeguards ensured to the Civil Servants in India are not
available to the Defence Personnel or any associated civil employee from them,
as article 311 is strictly applied and available only for the Civil Servants.
the Defence Personnel are governed by the Army Act, 1951 an Ors. therefore they
are not covered and safeguarded by this provision and can be dismissed without
assigning any reason looking to the National Security and National Interest, the
Courts cannot interfere with their domain.
The Landmark Case which defined and adjudged the meaning of Civil Post and the
persons covered under it's ambit was State of U.P. v A.N. Singh
 in which Hon'ble Supreme Court of India held the three tests which determines that
weather a person is a civil servant or not, they were:
Existence of Master:Servant Relationship with that of State- If there is
a relationship of Master and Servant being in existence between the State
and the Person that he may be looking and considering the other
circumstances and factors be regarded as a civil servant.
State must be the Selecting and Appointing Authority:The Selecting and
Appointing Authority of the particular individual must be state, that power
must be freely exercised by the State Government otherwise it must not be
called a free authority and the person also cannot be regarded as a civil
servant, as the State is not having freeness in appointing and selecting the
person of his choice.
Payment must be released from the State Treasury:The Payment made to
the Civil Servant or the salary paid or the wage paid must have it's source
from the State Fund or Treasury, which must establish a direct nexus between
the post of the person and authority of the State over it.
Likewise, if a person qualifies these tests, than he must be regarded as the
civil servant and is having all the Constitutional Protections are widely been
available to him under the provisions of the Indian Constitution.
Now the Constitutional Remedies available to such above aforesaid Civil Servants
under the Statutory Provisions of Article 311 are as follows:
Reasonable Opportunity of being Heard:Even the Principles of Natural
Justice, Indian Evidence Act, 1872 and various Provisions of Code of
Criminal Procedure, 1973 ensures that an accused or the alleged must get an
reasonable opportunity of being heard and to clarify that why a particular
punishment must not be inflicted on a particular civil servant who is
charged for a crime or irregularity.
Article 311 (2) of the Indian Constitution expressly states that a civil servant
cannot be dis-missed or reduced in rank until an unbiased and fair enquiry has
been conducted and investigation is properly executed in this reference and a
reasonable opportunity had been given to such a person to defend him in front of
the Disciplinary Authority or the Competent Court of Law.
Now, the Great
Question arises here that What is meant by a Reasonable Opportunity?
and purview of Reasonable Opportunity is so vast and uncertain, therefore it
cannot be confined into a particular Act or Statute, but it has to be considered
having regard to the circumstances and situations. In the most Landmark Case of
Chand v. Union of India Hon'ble Supreme Court of India answered this
Question, in which a Government Servant was des-missed from his service on the
basis of the Report of the Enquiry Officer, in which serious charges were framed
The Defendant challenged the validity of the dis-missal on the
ground that the Copy of the Enquiry Oficer's Report is not have been given to
the Defendant, and therefore he was not aware about the charges framed against
him and the findings of the Enquiry Officer in his Report, which is violation of
the Provisions of Article 311. It was held that it was obligatory on the
Competent Authority who passed the Order of Dis-missal to provide a copy of the
Report to the Defendant and must give him a reasonable opportunity to prove his
innocence and reason that why he must not be punished.
Therefore, even after the
recommendation and findings of the Enquiry Officer the dis-missal of the
Government Servant was held as in-validated. Similar contention was adopted in
the Case of Managing Director, ECIL v. B. Karunakarin which Five Judges Bench
of Hon'ble Supreme Court of India held that until the Enquiry Officer is not the
Disciplinary Authority it is obligatory on their part, to provide the Copy of
the Report to the alleged civil servant, even if it is contrary to the
provisions of any law, as non-compliance of the aforesaid is violation of the
Principles of Natural Justice, and the Act or Law denying the aforesaid is
unconstitutional to that extent.
Termination or Reduction in Rank must lead to Punishment:It is clear
from the above provisions of Article 311, that this remedy is available only
when the Civil Servant is reduced in rank or dis-missed or has been terminated by the way
of punishment, if it is in Formal Course of Administrative Procedure or
otherwise in Public Interest or due to In-efficiency or Mis-conduct on the part
of the Civil Servant than under such circumstances this remedy cannot be availed
by such civil servants.
Like in the most famous case of Parshottam Lal Dhingra v. Union of India
Appellant was appointed to officiate a Higher Post. After some time he was
reverted back to his previous place due to in-efficiency and dis-satisfaction in
his workings, but it neither in any way had affected his salary, previous rank
or future chances of promotion.
Hon'ble Supreme Court of India ruled that in
order to avail the remedy as constituted under Article 311, the termination or
reduction of rank must result into punishment i.e. when the person is entitled
to hold a particular post and is removed erroneously and arbitrarily or had not
been given any reasonable opportunity of being heard, here in the instant case:
- Firstly, the Appellant was merely officiating the Post, therefore he was
not having legal or constitutional right as such to hold the post, and from
the situation itself it is impliedly agreeable and reasonably force-able
that the post was terminable after giving a reasonable notice by the
- Secondly and Most significantly the civil servant was neither reduced in rank as
he was just officiating the post and neither he was terminated, dis-missed or
removed from his post as a punishment so therefore the aforesaid remedy was not
available to him under the Provisions of Article 311.
Similarly it has been held in various Judicial Pronouncements by Hon'ble Supreme
Court of India, that Suspension does not amount to punishment. Suspension is a
enabling provision under law and can be used by Government according to it's
discretion and when any of the civil servant is suspended he cannot claim the
Right of a Reasonable Opportunity, however he entitled to receive the minimum
subsistence allowance in accordance with the provisions of law, from which he
cannot be deprived off, and appeal can be made on the basis of irregularities or
dis-satisfaction in the Procedure of Enquiry but after getting a final order
from the Enquiry Commission or other Competent Authority and not otherwise.
3. Compulsory Retirement must lead to Punishment:
As also referred above that in
order to avail the remedy under the statutory provisions of Article 311, even in
the case of compulsory retirement, it must lead to punishment, only and only
than the civil servant can avail the remedy of the said provision.
premature retirement of any civil servant after completing the certain years of
Government Service or attaining a particular age in accordance with the Rules of
Service of that particular State or otherwise doesn't attract the liability
under this Article. The power to compulsorily retire a government servant is
vested in the Government by virtue of the Doctrine of Pleasure widely
incorporated by the provisions of Article 310 of the Indian Constitution.
However, the main purpose of granting such compulsory retirement is to weed out
the old dead wood and to provide opportunity to new and fresh blood in order to
maintain the efficiency and initiative skills in the administration of law and
order and justice at large.
The Service Rules widely provide for the condition
regarding the Compulsory Retirement of a civil servant after attaining a
particular age or completing a prescribed yeas in Governmental Service, but
while doing so the review of the Confidential Report of the Civil Servant is
minutely scrutinised in order to investigate the Mis-conduct or In-efficiency on
his part which is the most common decisive factors for the Compulsory Retirement
of any Civil Servant.
However, in contrary to it the Civil Servant may use any
other remedy as prescribed in his subjected Service rules but he is not at all
entitled to avail the aforesaid remedy under the said provision. The major
guidelines regarding the Compulsory Retirement of a Civil Servant has been laid
down in the most famous case of State of Gujarat v. Umedbhai M. Patel
. by Hon'ble Supreme Court of India are as follows:
- If the Public servant is no longer useful as an efficient personnel to
the administration, than such officers may be compulsorily retired from
- If it is necessary in the public interest or any other genuine reason to
retire such officer from his services, than such decision might be taken.
- The Order must not be passed in a haphazard manner, ignoring the
procedural requirements in this reference if is it necessary to do so like
the Departmental Enquiry or the Recommendation of the Review Committee if
desirable, must be done.
- Compulsory Retirement under such circumstances will not lead to
Punishment and will not at all attract any provisions of the Article 311,
however remedy under the concerned Service Rules will be available to the
said civil servant.
- Any adverse entries in the Confidential Report or any Inquiry pending
against the such civil servant for any corruption charges or mis- conduct will be given
consideration and due weightage while passing such Orders.
- If the Officer is given any promotion or prominent place in the
administration despite of pending investigation against him or adverse
entries in the CR, than it will be regarded as a undue favour to the civil
- Any private complaint or any un-communicated entries which might not be
lodged in the Confidential Report of the Civil Servant may be taken into
consideration while reviewing the Compulsory Retirement of the Civil
- The Compulsory Retirement must not under any circumstance forfeit any
right of the Civil Servant like Pension, Gratuity and other benefits,
neither in any way must impose any monetary punishment or penalty on him.
It is widely regarded that with reference to the above said Guidelines the Civil
Servant may be given compulsory retirement if the Authorities or the than
Government thinks fit to do so, acting in the periphery of the Guidelines,
Procedures, Service Rules and Discretionary Powers vested in the Government,
which must lead to punishment in any way as contrary to it will attract the
provisions of Article 311.
Exceptions Of Article 311 Of The Indian Constitution:
The Article 311(2) provides immunity and protection to the civil servants from
extraneous and excessive punishment, but on the same hand they are having some
exceptions being attached to it, under which the provisions and remedies as
stated in the Article 311 are not available to the concerned Civil Servant,
neither he can avail it, They are:
Conviction on a Criminal Charge:If a Civil Servant is dis-missed or reduced
in rank or is terminated on the ground of his conviction held under any Criminal
Charge, than under such circumstances he cannot avail the remedy of reasonable
opportunity as stated in the provisions of Article 311.
As the readers might be
knowing that there is Doctrine that for availing a remedy or seek redressal
under Court of Law He must come with clean hands. Therefore, if the particular
civil servant himself is not bonafide and justofied on his part that he cannot
seek remedy under at-least this provision due to his wrongful conduct and
involvement in the conduct of Moral Turpitude.
It was held in the famous case of K. Venkateshwarlu v. State of A.P. that
were under a trial if a Civil Servant is convicted by the Court, than under such
circumstances it is obvious that the Disciplinary Proceedings are bound to
follow him, but even if he is held as acquitted than also Departmental Enquiry
can be conducted against him, if his acquittal is other than honourable.
Where it is not practicable to hold Inquiry:If the concerned authority
is satisfied or thinks fir that in National Security or in Public Interest
it is necessary to dismiss or remove a civil servant from his post, than
under such circumstances the concerned must record that particular thing in
writing and after that it is not reasonably necessary or required to hold
Like in the case of Jaswant Singh v. State of Punjab Hon'ble Supreme Court
of India ruled that making baseless considerations and claims that the appellant
would cause harm and injury to the witnesses or will cause problems in the
Departmental Enquiry, in the absence of any concrete evidences are baseless and
un-acceptable. Therefore the Dismissal Order against the Appellant was set aside
and he was re-instated on his post with all the necessary allowances and due
salaries from the date of dis-missal.
Even the Article 311 expressly provides some exceptions in it's provisions where
the Doctrine of Audi Alteram Partem i.e. Principles of Natural Justice doesn't
applies, like when the appropriate authority like the President or Governor of
the State is satisfied that it is feasible to remove the Civil Servant from his
post due to Public Interest, Public Good or Public Policy than this remedy is
not available under such circumstances. Like when a Civil servant was convicted
by the Court for causing injury to his superior under such circumstances giving
a chance to the civil servant is not reasonably practicable as his mis-conduct
is clearly visible.
It was contended that even after such mis-conduct the remedy is not available to
the concerned civil servant under the provisions of Article 311, but even than
two more remedies are available to them apart from these, they are:
- The Civil Servant can make an Appeal before his Department to a superior
or Principal Secretary of the Department, as he is having wide statutory
powers been vested in him for granting relaxation to the aggrieved civil
servant under such circumstances.
- he doors of Judiciary is always open for such person, but not under
Article 311, but under Article 32 or Article 226 in the form of Judicial
Review, now the Court will decide that weather the punishment imposed was
arbitrary or excessive or weather the procedure adopted was rightful or is
merely hypothetical and un-warranted by facts and required evidences.
Proceedings beyond proof of reasonable doubt is not applicable:In the Disciplinary Proceedings being instituted against any civil servant
the proof beyond a reasonable doubt will not apply. It must follow a sense
of reasonableness and must not be hypothetical and too remote to be
exercised or happened. Even what could a prudent man could have done in
reasonable circumstances must be considered before reaching on any
conclusion, there must be active evidences against the concerned officers
otherwise the investigation cannot be regarded as valid and justified.
Quantum of Punishment must be Reasonable and Acceptable:It is a
noted fact that, the punishment being awarded to the Civil Servant for his mis-conduct or
wrongful deed rests with the concerned Investigating Officer or the Disciplinary
Authority, however the Judiciary has clearly told that the punishment must not
be excessive and un-reasonable to the ratio of the crime committed otherwise the
validity and acceptability of the said order is supposed to be challenged under
the Court of Law for extraneous punishment which is totally un-warranted.
From all of the above exceptions, the remedy stated under this Article is
available to the concerned civil servant, on the condition that his dis-missal
or reduction in rank must lead to punishment.
- AIR 2003 SC 3032
- AIR 1954 SC 245
- AIR 1961 Ker. 155
- AIR 1965 SC 360
- AIR 1958 SC 300
- 1993 4 SCC 727
- AIR 1958 SC 36
- AIR 2001 SC 1109
- AIR 2012 SC 2955
- 1991 1 SCC 362